Is patent legislation dying in the Senate?

The Senate Judiciary Committee had been working hard to reach an agreement on changes to a bill aimed at reducing patent litigation brought by patent trolls. But last week, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, said he is shelving a patent bill because the two sides could not compromise to prevent patent litigation abuse without punishing innovators.

"Because there is not sufficient support behind any comprehensive deal, I am taking the patent bill off the Senate Judiciary Committee agenda," Leahy said in a statement. "If the stakeholders are able to reach a more targeted agreement that focuses on the problem of patent trolls, there will be a path for passage this year and I will bring it immediately to the committee.”

According to The Chicago Tribune, the bill has support from companies including Google and Cisco, as well as some retailers. But, critics worry that efforts to rein in unwarranted patent infringement lawsuits could hurt drug companies, colleges and others looking to protect intellectual property.

Marylee Jenkins, Partner, Arent Fox LLP, shed some light on this news. “This particular patent legislation has stopped, but I don’t believe this will be the end to such reform in the Congress. These patent troll issues have greatly expanded over the years. Thoughtful and reasoned patent legislation can only help – but such legislation needs to consider how it will impact all patent holders – not just patent trolls.”

According to Jenkins, the tabling of troll legislation shows that our Senate leaders recognize that merely patching a problem may have long term consequences that can be detrimental to the patent system. “Clearly more discussion and input are needed from the patent holder community,” she added.

Senator Chuck Grassley said he was "surprised and disappointed." The decision to pull the bill also angered coalitions and trade groups that have been pressing for a legislative solution to abusive accusations of patent infringement. Critics of the bill said they were still open to a compromise that would tackle the troll issue without punishing innovators.

“This shows pretty clearly that addressing these issues is more complicated than many may have thought," Q. Todd Dickinson, director of the American Intellectual Property Law Association, told the Chicago Tribune. "The key has always been to find the right balance: deal with truly abusive behavior, while making sure that real innovators can enforce their rights.”

The bills in the Senate and House contemplated changes such as making it easier for judges to require the loser of an infringement lawsuit pay the winner's fees, and allowing a manufacturer to step in to defend a customer accused of infringement.

Jenkins explained, “Such legislation has increased the burden on patent holders by adding a state by state element with regard to their activities. Consumer protection is vitally important but such adds new and uncertain costs and expenses to our patent holder inventors – both corporations and individuals.”

“It defeats our patent system to carve out niches for a particular category of patent holders. A more holistic approach is needed to ensure that there are no unintended consequences,” Jenkins said.